A tribunal’s legal tender

Although, many would argue that the concept of justice should carry no price tag, and indeed they may be right, anyone who has ever received an invoice form their lawyer knows very well that justice is by no means cheap.

There are however precedents that justify the costly application of justice over a frugal one. In 1999, the United Nations Security Council (UNSC) passed resolution 1272 effectively creating the Special Panels for Serious Crimes in East Timor. Only $6.3 million was budgeted for the proceedings that consisted of around 50 trials involving over 80 defendants even though initially the court originally issued indictments for almost 400 people. The trials’ creation was dogged by inefficiencies relating to recruitment, translation and the application of legal systems among other items. Ultimately, when the United Nations (UN) ceased to funding for the court approximately 1000 cases ranging including murder, rape and torture had yet to be tried and remain pending to this day. The Extraordinary Chambers in the Courts of Cambodia (ECCC) — originally budgeted at $56 million of which $13 million was to be provided by the Government of Cambodia (GoC). The trials, which were scheduled to take place between June 2006 and June 2009, came across funding issues when the GoC was not able to fulfill its financial commitments leaving the court $4 million short of its intended target size. Last month a new request for funding, as well as an extension of proceedings until March 2011, was presented for an additional $115 million. That brought the total proposed cost of the court, with only five accused, to $170 ($36 million per accused). The case is viewed as a financial disaster for international justice by many.

On March 1 2008, the Special Tribunal for Lebanon (STL) came into effect pursuant to the request of the Lebanese government and UNSC resolutions 1644 and 1757. On the surface, the explosion that ripped through the heart of Beirut on February 14th 2005 killing 23 people may not seem like an act worthy of a tribunal with an “international character” or the invocation of chapter seven of the UN charter- an action that stipulates the authorization of the use of force, “by air, sea, or land forces as may be necessary to maintain or restore international peace and security” including, “demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.” Indeed, such events are not uncommon around the Middle East and have become almost synonymous with the region’s image around the world. Nevertheless, the use of such heavy-handed language is ostensibly the result of the fact that the pick-up truck filled with around 1000kg of TNT that caused the explosion killed Lebanon’s “western-backed” two-time Prime Minster (’92-’98, ’00-‘04) and business magnate Rafik Al Hariri.

The tribunal is the legal successor to the United Nations International Independent Investigation Commission (IIC). As with almost any international mechanism aimed at seeking justice, the commission and the STL have been the subject of a great deal controversy mainly revolving around the alleged politicization of the investigation and subsequent tribunal. “There are always claims around every tribunal that there is some politicization because you only have to have the USA put money in and you will find that strait away people will say that there is politicization,” says Robin Vincent, registrar of the STL, in effect the chief administrative officer for the tribunal. The four former security officials accused of plotting the February 14th attacks have been held in Lebanon since late 2005 without trial and are currently awaiting transfer to a holding center in the popular sea-side resort of Scheveningen which, although vacant, is presently being paid for by the STL at a discounted rate.

The total cost of the STL is to date unknown due to the fact that, even though the first 3 years have been budgeted for, there is no set timeline for the completion of the tribunal. The principle reason for the open ended nature of the STL is attributed to a clause in the mandate of the tribunal that can extend the court’s jurisdiction to, “other attacks that occurred in Lebanon between 1 October 2004 and 12 December 2005 are connected in accordance with the principles of criminal justice and are of a nature and gravity similar to the attack of 14 February 2005.” If that comes to pass the current budget for the STL may also be extended. “If anything should happen during the year in terms of activities being advanced I have to respond,” says Vincent. “I am in a position where I can go back to the committee [the organ in charge of administrative decisions at the STL] and ask them to amend or revise the budget to provide me with more funds than those that actually exist.”

The funding for the STL, like that of the ECCC, is provided by voluntary donations from UN member states. The Government of Lebanon (GoL), currently led by the “pro-western” PM Fouad Siniora, is obliged to pay 49 percent of the total budget allocated to the tribunal, a compulsion they have been keen to meet. The budget for the first year of the tribunal was initially set at approximately $35 million– to which the GoL made a down payment of 49 percent against the total– by the STL’s Management Committee.

In November of 2008, the management committee raised the 2009 budget to the level where it stands today at $51.4 million, for which the GoL has already paid its share. The total amount of money received thus far towards the first year of comes to around $62.6 million. “We do have money over and above the budget of the first year,” says Vincent. If however the makeup of the Lebanese government does change subsequent to the June elections and the country’s leadership becomes less willing to support the tribunal for political reasons there is always the nuclear option. “If during the lifetime of the tribunal the funding situation becomes difficult then [the UN Secretary General] reserves the right to revert to the UNSC,” asserts Vincent.

The expenses of the first year will cover the logistical elements necessary for the initiation of proceedings as well as the other activities of the tribunal. “The prosecutor [Daniel Bellemare] has made it very clear that he would see 2009 as still being a year where predominately there would be ongoing investigations.” Today, there is still a small team in Beirut that is currently liquidating its operations that are not being funded by the STL but rather by the UN itself.

Although the list of contributors ranges from Austria to Uruguay, the latter contributing a symbolic $1,500, perhaps the most notable facet of the list is that only one side of the countries with a vested interest in Lebanese politics have contributed to the STL, prompting further accusations of politicization. The principal contributors to date to are the United States ($14 million), Kuwait ($5 million), France ($4.5 million) and a collection of other “regional states” who have chosen to “exercise their right to remain anonymous, ” according to Vincent. The most notable absentees from the list are Syria and Iran, the other regional players in the Lebanese political farrago, who have not responded to offers to contribute and are not included in the “regional states” mentioned previously. The Syrian and Iranian embassies in Lebanon could not be reached for immediate comment. “I would treat silence from Syria or Iran exactly the same way as I treat it from Argentina or Venezuela,” adds Vincent.

As of late March, the premises where the proceedings are to be held are still under construction and are not expected to be completed until late 2009. Furthermore, the STL is still in the process of building up the facilities to handle the logistical elements related to holding the accused, housing the organs of the court and preparing the building on the outskirts of The Hague donated by the Government of the Netherlands for a total cost of $8.8 million.

As far as further years of the tribunal are concerned, many of the existing donors have already been asked to commit money. “Of course we have gone back […] to all the existing donors asking them if they could make a pledge for year 2 particularly and year 3 if they could do,” says Vincent. “The difficulty is that, for most member states, their fiscal arrangements don’t always allow them to commit money, especially when there may be an election in the next to year or so or when there is a financial crisis,” says Vincent. But there are those who look to be in it for the long haul. “Hillary Clinton came out about a month or so ago and pledged $6 million on behalf of the US for year two. We don’t think that that will be all it is but its and indication from the US that they are committed.”

That commitment will have to be solidified in the coming year as justice’s bill is expected to go up even after the construction and logistical phases have been completed. “I was asked to forecast figures for the second and third years and the figures that I came up with were 65 million for each of the next two years,” says Vincent. “We can see that that is significant and around a 25% rise in our costs that would be attributed to a predicted change the prosecutor’s activities moving from investigation to trial and there would be an emphasis on trial teams which there isn’t at the moment.”

Today the STL looks to be in a good financial position and liquid enough to fulfill its tasks. Moreover, it seems to have learned from the shortcomings of previous tribunals by shooting high in order to avoid future financial problems. Where the money comes from and what the politics of the matter are will undoubtedly be the subject of much discussion in the years to come. What is important however is that the STL retain its objectivity throughout regardless of what criticisms are levied. That will be a daunting task to overcome, especially when the court commences proceedings and the issues of proper legal processes are surely to be questioned by the defense. Nevertheless, the only certainty of the matter is, as Vincent affirms, that “the tribunal can only be judged by its acts and not [its] words.”

This article was published in a different format in Executive Magazine’s April 2009 issue